Legal aspects of the discharge from hospital into care (1)

Legal aspects of the discharge from hospital into care (1)

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It’s a stressful time when mum or dad can no longer live in their own home either at all or without carer support . Often this becomes clear upon an admission to hospital.

It is usually one of the children who is then catapulted into the unfamiliar world of social services and NHS bureaucracy, made all the more frustrating by the general recognition that the discharge process is dysfunctional.

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In a series of articles we look at this process in England beginning with the law relating to discharge planning.

Discharge Planning

The process of discharge planning is governed primarily by the Community Care(Delayed Discharges) Act 2003 (the Act), subordinate legislation and the associated guidance. The principal regulations made under the Act are the Delayed Discharges (England) Regulations 2003 (the regulations).

Under the Act the NHS must notify social services that someone who is or is expected to become a “qualifying patient” is unlikely to be safe if discharged unless a community care service is provided. This is called a section 2 notice. It must state the likely date of discharge if that is known. A section 2 notice can be given up to 8 days before admission which is important where elective surgery is to be undertaken and it can be foreseen that a care service will be necessary thereafter.

Notice is given to the social services department of the area in which the patient is ordinarily resident or if they have no settled residence, to the social services authority where the hospital is situated (s2(2) of the Act).

Upon receipt of such a notice the social services authority must carry out an assessment of the services required for it to be safe to discharge the patient and in consultation with the NHS, decide which of those services are to be made available (s4(2)(a) & (b)).

If requested to do so by a carer, social services must also carry out an assessment of that carer for the purposes of providing them with services in order for it to be safe to discharge the patient (s4(3)).

It is immaterial whether social services have previously carried out such assessments (s4(5)).

After issuing a s.2 Notice

Once it has given a section 2 notice, the NHS body must thereafter consult with social services regarding any services it is considering providing to the patient after discharge.

It must also notify social services of the day it intends to discharge the patient (s5(e)). The date of proposed discharge cannot be less than 2 days after the section 2 notice is given. The notice must also give at least 1 days notice of proposed discharge.

The Act then sets out the basis upon which social services shall be liable to pay the NHS body a daily fee if the patient cannot be discharged solely because of the failure to arrange the required community care service. This is intended as an incentive for social services to prioritise discharge planning.

Who does it apply to?

This system only applies to patients in acute care, which means “intensive medical treatment provided by or under the supervision of a consultant for a limited time after which the patient no longer benefits from that treatment” (s3(2) the Act). It does not apply inter-alia to patients admitted for palliative care, intermediate care or care provided for the purposes of recuperation or rehabilitation (regulation 3(3)).

The social services assessment counts as an assessment pursuant to the duty to assess under s47 NHS Community Care Act 1990 but it must be noted that the s47 duty is to persons who “may” be in need of community services whereas the NHS duty to notify social services under the Act is only where there is a likelihood of requiring such services. If the hospital refuses to issue a s2 notice, a relative can still request an assessment direct under s47 but the Act will not apply.

Before issuing a section 2 notice, the NHS body must take reasonable steps to ensure that an assessment of eligibility for NHS continuing care has taken place. This is the subject of the next article.

An example

Mrs D was admitted to hospital following a fall. She was diagnosed with a broken hip. Care was organised though her orthopaedic consultant who was primarily concerned obviously with the bone injury. Mrs D’s mental state declined in hospital and she required 24 hour supervision. In due course the orthopaedic consultant decided that in terms of the hip problem, she was ready to be discharged. However her mental state decline raised new problems regarding her care which was now thought unsuitable. Many weeks went past before appropriate care could be found.

This example illustrates a common service failure. It was predictable that her needs may change whilst in hospital but no consideration was given to her discharge needs until the orthopaedic consultant considered that she was ready to go on his own criteria. If a proper discharge assessment had been commenced much earlier then planning would have been more advanced. As it was she spent far too long in an unsuitable environment that was damaging to her health. This phenomenon is called ‘bed blocking’ and is a widespread problem in the NHS, wasting resources and causing frustration and suffering to patients.